Madras High Court
Suresh vs State on 28 February, 2012
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/02/2012 CORAM THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE P.DEVADASS Criminal Appeal (MD) No.178 of 2011 Suresh ... Appellant Vs State rep. By The Inspector of Police North Police Station Tuticorin. ... Respondent Prayer Appeal filed under Section 374 (2) of Criminal Procedure Code against the judgment dated 30.5.2011 of learned Additional Sessions Judge (Fast Track Court No.I), Tuticorin in S.C.No.65/2011 convicting and sentencing the appellant. !For appellant ... Mr.M.Patturajan ^For respondent ... Mr.K.S.Duraipandian Additional Public Prosecutor - - - - - - :JUDGMENT
P.DEVADASS,J.
1. This is an alleged case of an husband burning his wife.
2. Suresh, husband of deceased Sumathi, who was prosecuted for an offence under Section 302 IPC in S.C.No.65 of 2011 before the learned Additional Sessions Judge (Fast Track Court No.I), Tuticorin, and convicted on 1.4.2011 for the said offence and was sentenced to life and fined Rs.1,000/- with default sentence, is the appellant.
3. In the trial Court, prosecution proceeded against him alleging that he is the killer of his wife and had put up the case against him, which, we narrate as under:-
(i) In 2005, Suresh married Sumathi, daughter of P.Ws.1 and 2 Jansi and Johnson. Suresh - Sumathi have their separate residence in the upstair portion at Door No.9, in Narayanachetti Street, in Tuticorin. They were blessed with a male child, but not with a happy married life. There used to be frequent quarrel between them. P.Ws.1 and 2 are residing in the next street.
(ii) On 12.9.2008, at about 2 p.m., P.W.1 came to her daughter's house, took away her grand son, who was then 3 years old. At about 6 p.m., P.Ws.3 and 4 Selvam and Antony Pitchai, neighbours of Sumathi, heard her shriek. They rushed in. Seen Sumathi burning. They put out the fire. One Usha informed this to P.Ws.1 and 2. They came and saw their daughter with burn injuries.
(iii) P.Ws.1 and 2 first took Sumathi to Rajeshwari Hospital in Tuticorin and then to American Hospital in Tuticorin. Since her condition became serious, she was taken to Government Medical College Hospital, Tuticorin.
(iv) At the said hospital, P.W.13 Dr.Karunakaran seen Sumathi with 60% burn injuries. He admitted her as an in-patient. She told him that on that day, at about 6 p.m., in her house, while cooking in the kitchen, she had sustained burn injuries. P.W.13 sent Ex.P.14 intimation to Police.
(v) P.W.9 Kamaraj, Head Constable, Tuticorin North Police Station, at about 9.30 p.m., received the hospital intimation. At about 10 p.m., he visited the hospital. Sumathi gave similar statement (Ex.P.6) to him that she sustained injury in the accident fire. At about 11 p.m., in the Station, in the General Diary, P.W.9 recorded it.
(vi) On 15/8/2008, at about 8.30 a.m., at the said Police Station, P.W.14 Chola Perumal, Head Constable, registered a case of Accidental Fire (Ex.P.15 FIR). Sent it to the Court and sent a copy to P.W.15 Perumal, Sub-Inspector.
(vii) At about 9.45 a.m., at the scene house, in the presence of P.Ws.5 and 6 Ave Marian and Antony Anglo, P.W.15 prepared Ex.P.1 observation mahazar.
Drew Ex.P.16 rough sketch. Recovered empty kerosene can (M.O.1), match- stick (M.O.2) and half-burnt cloth (M.O.3) under Ex.P.17 mahazar.
(viii) At the hospital, P.W.15 examined Sumathi, her parents, P.Ws.3 to 6 and recorded their statements. In her statement, Sumathi stated that since her husband was with her, on 12.9.2008, she had stated that while cooking, in the accidental fire she had sustained burn injury but, actually her husband had poured kerosene on her and set fire on her and because of him only she had sustained burn injuries all over her body.
(ix) In the circumstances, P.W.15 changed the Section of law to Section 307 IPC. Sent the Alteration Memo (Ex.P.18) to the Court, and produced the Case-Diary to P.W.17 Devendran, Inspector.
(x) On 16.9.2008, P.W.17 took up investigation. He further examined Sumathi and other material witnesses. On 25.9.2008, at about 4 p.m., near Mattakadai Junction, he arrested the accused and produced him before the Court for judicial custody.
(xi) On 18.9.2008, at about 11.30 a.m., P.W.12 Hemanantha Kumar, Judicial Magistrate No.II, Tuticorin, received intimation (Ex.P.12) from the Government Medical College Hospital, Tuticorin to record Sumathi's dying declaration. At about 11.40 a.m., P.W.12 seen Sumathi at the said hospital. Dr.Denzil was also with him. He certified him about her consciousness and fit mental condition to give dying declaration. P.W.12 having fully satisfied with her fit mental condition, recorded her dying declaration (Ex.P.13). She told him that on the last Friday, at about 5 p.m., in her house, her husband had poured kerosene on her and set fire on her.
(xii) On 2/10/2008, at about 2.20 p.m., at Sacred Heart Hospital, Tuticorin, Sumathi passed away (Ex.P.19 death intimation). In the circumstances, P.W.17 altered the Section of law to Section 302 IPC. Sent Ex.P.20 Alteration Memo to the Court. He also sent reports to P.Ws.10 and 16 Kalaimani and Natarajamoorthy, R.D.O. and D.S.P., Tuticorin respectively.
(xiii) On 3.10.2008, at the mortuary, in the Govt. Hospital, in the presence of Panchayatdhars, P.W.10 held inquest over the dead body (Ex.P.7 Inquest report). He examined the witnesses and recorded their statements. He sent Ex.P.8 requisition to the hospital to conduct post-mortem. He sent Ex.P.9 requisition to preserve and examine her viscera.
(xiv) At the said hospital, on 3.10.2008, between 1.15 and 2.15 a.m., P.W.11 Dr.Selvaraj, conducted post -mortem on the dead body of Sumathi. He had noticed burn injuries on her body. He opined that she appeared to have died of burns and complications thereof.
(xv) P.W.16 examined the material witnesses and recorded their statements. As Sumathi did not die due to dowry torture, instructed P.W.17 to continue his investigation.
(xvi) P.W.17 examined the witnesses further, obtained final opinion from P.W.10. Concluding his investigation, filed the Final Report for an offence under Section 302 IPC.
3. In the trial Court, the accused has been tried for a charge under Section 302 IPC.
4. To sustain the charge, P.Ws.1 to 17 were examined Exs.P.1 to P.20 were marked and M.Os.1 to 3 were exhibited. On the incriminating aspects in the prosecution evidence, the accused has been examined. He denied his complicity in this case.
5. The accused marked the joint statement of P.Ws.1 and 2 to P.W.10 as Ex.D.1, Panchayatdars statements as Ex.D.2 and the physically handicapped certificate issued to the accused as Ex.D.3.
6. The trial Court relying on Ex.P.13 dying declaration, oral evidence and certain incriminating circumstances concluded that Sumathi has been killed by her husband and found him guilty under Section 302 I.P.C. and sentenced him as stated already.
7. According to Mr.M.Patturajan, learned counsel for the accused, a case of accidental fire has been painted as case of murder and due to prior enmity, the accused has been implicated in this case and has been convicted on the basis of a tutored dying declaration.
8. Elaborating his submissions, the learned counsel submitted as under:
(i) The accused and his wife Sumathi, who were endowed with a son have led their happy married life in their separate residence in Tuticorin.
(ii) On 12.09.2008, at about 6 p.m., while preparing tea, in her kitchen, for her beloved husband, in the accidental fire, she sustained burn injuries.
(iii) That is how when she was brought to the hospital, she told P.W.13, the causality doctor, that she sustained burn injury in the accidental fire. She also stated so in her Ex.P.6 statement to P.W.9, the Head Constable. This is the first and the correct dying declaration in this case.
(iv) On the complaint of accused's brother Lourthusamy, in S.C.No.152 of 2006, Sumathi's father and her brother were convicted by the learned Additional Sessions Judge, (Fast Track Court No.II), Tuticorin. There was no cordiality between the accused and his in-laws.
(v) In the circumstances, on the tutoring of P.Ws.1 and 2, for the first time, on 15.09.2008, Sumathi gave statement to P.W.15, Sub-Inspector implicating her husband. On 18.09.2008 also she had stated similarly to P.W.12, the Magistrate.
(vi) Few days later, due to treatment complications, she died. The evidence of P.W.11, the postmortem doctor also shows this.
(vii) Sumathi did not give dying declaration to the Magistrate in a fit mental condition and out of her free will and volition.
(viii) When P.W.12 recorded her dying declaration, Dr.Denzil had certified her fit mental condition. But, he has not been examined in the trial Court.
Further, the doctor did not certify that throughout she was having fit mental condition.
(ix) P.W.13, also stated that there was no smell of Kerosene on her.
(x) There are two inconsistent dying declarations. Each is opposed to the other. In such circumstances, the first one, namely, Ex.P.6 statement to P.W.9 is to be preferred.
(xi) Long after her Ex.P.6 statement, due to the pressure of P.Ws.1 and 2, the accidental fire case has been converted a cognizable case.
(xii) When the dying declaration is surrounded with suspicion and it is a result of tutoring and prompting and the parents of the deceased are highly inimical towards the accused, it is quite unsafe to act upon such dying declaration.
(xiii) No doubt, a sole dying declaration is enough to record a conviction, but, when it is surrounded with mystery, it is required to be corroborated, but, in this case, no such corroboration. So, such a dying declaration cannot be a basis for recording a conviction.
(xiv) After long and unexplained delay, the F.I.R. has been registered.
(xv) The accused, a physically handicapped person, by his wicked in-laws, has been framed in this case and because of them he has been jailed.
(xvi) The prosecution has not established its case beyond all reasonable doubts.
(xvii) Thus, in the circumstances, the accused is entitled to be acquitted.
(xviii) In support of his submissions, the learned counsel for the accused produced the following citations:
(i) STATE OF GUJARAT Vs. KHUMANSINGH KARSAN SINGH [AIR 1994 SC 1641].
(ii) MOHAN LAL Vs. STATE OF HARYANA [2007 (3) SCC 94].
(iii) KEESARI MADHAV REDDY Vs. STATE OF A.P. [2011 CRI. L.J. 1460].
9. On the other hand, Mr.K.S.Duraipandian, learned Additional Public Prosecutor submitted as under:
(i) The accused suspected his wife and continuously harassed her.
(ii) He ill-treated and scolded her in a demeaning manner. On the fateful day, he poured Kerosene on her and set fire on her.
(iii) During the initial stage, since her husband was with her and also future of her only son was in her mind, in her initial dying declaration, she was made to bunk the real occurrence and exclude her husband.
(iv) After gaining strength and confidence, she told the real happening to P.W.14, the police officer and to P.W.12, the Judicial Magistrate that her husband is responsible for her burn injuries.
(v) There is nothing to show that she has been tutored or prompted to implicate her husband in this case.
(vi) The motive suggested as between the accused and his in-laws was five years ago and even thereafter for a long time, the accused and their daughter lived together in their separate residence. Therefore, the motive suggested to avoid the dying declaration is to be avoided.
(vii) P.W.2, fully satisfied with her fit mental condition to give dying declaration. In this regard, he was also assisted by a medical officer. In the court, P.W.12 also stated so. In the circumstances, merely on account of non- examination of the said doctor, the dying declaration cannot be brushed out.
(viii) In the circumstances, merely on the account of non-examination of the said doctor, the dying declaration cannot be brushed out.
(ix) When the course of events took different turn and ultimately when she died, Section 302 I.P.C. has been invoked.
(x) Besides her judicial dying declaration, there are incriminating circumstances, and the oral evidence all lend assurance to the contents of her judicial dying declaration.
(xi) In the facts and circumstances, the prosecution has clearly established its case against the accused beyond all reasonable doubts.
(xii) Thus, the accused has been rightly convicted and sentenced accordingly.
10. We have given our deep consideration to the arguments of the learned counsel for the accused and the learned Additional Public Prosecutor. We have also scanned the case-records and materials and also perused the various decisions cited at the bar.
11. In 2005, accused married Sumathi, the daughter of P.Ws.1 and 2 Jansi and Johnson. The couples were blessed with a son. He is Roobinston. They lived in a house situate in Narayanan Chetti Street in Tuticorin. P.Ws.1 and 2 lived in the next street.
12. On 12.9.2008, at about 6 p.m., Sumathi was found with burn injuries. She was taken to certain private hospitals and then to Government Medical College Hospital, Tuticorin, where she told P.W.13 Karunakaran, Casuality Doctor that on that day, while preparing tea in the kitchen for her husband, accidentally, she got burn injury. She had stated so to P.W.9 Kamaraj, Head Constable, Tuticorin North Police Station, he recorded it and it is Ex.P.6.
13. On 15.9.2008, at the said Hospital, Sumathi stated to P.W.15 Perumal, Sub-Inspector of Police that actually, on 12.9.2008, in her house, her husband had poured kerosene and set fire on her. That is how, she sustained injury from her neck to thighs.
14. On 18.9.2008, at about 11.30 a.m., P.W.12 Hemanantha Kumar, Judicial Magistrate No.II, Tuticorin, received Ex.P.12 intimation from the Hospital, to record her dying declaration, there upon, he visited the Burn Ward, in the said Hospital and seen Sumathi and Dr.Denzil, certified her consciousness and fit mental condition to give dying declaration.
15. To satisfy himself about her fit mental condition, P.W.12 questioned her as under:-
Bfs;tp : cA;fs; bgah; vd;d?
(Question: What is your name?) gjpy; : Rkjp.
(Answer: Sumathi.) Bfs;tp : cA;fs; fzth; bgah; vd;d?
(Question: What is the name of your husband?) gjpy; : RBu&;.
(Answer: Suresh.) Bfs;tp : ePA;fs; vA;F FoapUf;fpwPh;fs;?
(Question: Where are you residing?) gjpy; : ehuhad brl;o bjU, kl;lf;fil.
(Answer: Narayanachetti Street, Mattakadai.) Bfs;tp : ehd; ePjpj;Jiw eLth; vz;.2 vd;W bjhpe;J bfhz;Ouh? (Question: Did you know that I am Judicial Magistrate No.II?) gjpy; : Mk;.
(Answer: Yes.) Bfs;tp : ePA;fs; ehd; Bfl;Fk; Bfs;tpfSf;F gjpy; mspf;Fk; kd epiyapy; cs;sPuh? (Question: Are you in a fit mental condition to answer my questions?) gjpy; : Mk;.
(Answer: Yes. )
16. P.W.12 after having fully satisfied with her mental condition, recorded her dying declaration (Ex.P.13), which runs as under:-
Bfs;tp : cA;fSf;F ne;j fhaA;fs; vg;go vd;W Vw;gl;lJ? (Question: When and how you had sustained these injuries?) gjpy; : Bghdthuk;, bts;spf;fpHik khiy 5 kzpf;F vd; tPl;oy; itj;J vd; g[U&d; RBu&; kz;bzz;iz Cw;wp jP itj;jhh;.
(Answer: Last week Friday, at 5 p.m., in my house, my husband Suresh poured kerosene on me and set fire.) Bfs;tp : vjw;fhf?
(Question: Why) gjpy; : ehd; vd; kfd; Ugp!;lid mor;Brd;. vd; g[U&d; vd;dplk; vjw;F gps;isia mof;fpw vd;W Bfl;lhh;. vd; g[U&d; vd;id mrpA;fkhf Bgrpdhh;. ehd; rhtg;BghBwd; vd;W brhd;Bdd;. eP vjw;F rht[Bw vd;W Bfl;L mtBu kz;bzz;iz Cj;jp gj;j tr;rhh;. (Answer: I have beaten my son Robinston. My husband asked me why I was beating the son. My husband scolded me indescently and I told him that I am going to die. He told me why you should die? Then, he himself poured kerosene on me and set fire.)
17. Dr.Denzil certified that through out recording of the dying declaration, the patient was fully conscious. Certificate as to her fit mental condition before recording the dying declaration and till the completion of the recording of dying declaration, has been certified by Dr.Denzil.
18. Thereafter, on 02.10.2008, at about 2.20 p.m., at the Sacred Heart Hospital, Tuticorin, Sumathi passed away (Ex.P.19 death intimation).
19. On 12.9.2008, in her Ex.P.6 statement to P.W.9 Sumathi had stated that she sustained burn injury in accidental fire. On 15.9.2008, to P.W.15, she told that her husband had poured kersone on her and set fire on her. On 18.9.2008 she had stated so to P.W.12. Thus, we see, there are two lines of dying declarations. First one is excluding her husband. The second one is implicating her husband. Thus, there are two inconsistent dying declarations.
20. In the circumstances, it has been strenuously contended by the learned counsel for the accused, the first one viz., excluding the accused, is to be preferred.
21. However, on the side of the prosecution, it has been submitted that the dying declaration, which is genuine, true and born not out of any tutoring is to be preferred and that is what Ex.P.13 dying declaration in this case.
22. Dying declarations are statement of persons, who cannot be called as witnesses. It is hearsay evidence permissible under Section 32(1) of the Indian Evidence Act,1872. (Also see Section 60 of Indian Evidence Act.)
23. In SHARDA Vs. STATE OF RAJASTHAN [2010 (2) SCC 85], it is stated as under:
"23. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:
"Nemo moriturus praesumitur mentire-a man will not meet his Maker with a lie in his mouth."
It is indicative of the fact that a man who is on a deathbed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration."
24. In MOHAN LAL Vs. STATE OF HARYANA [2007 (3) SCC (Cri) 94], the Hon'ble Apex court laid down the following guidelines for the appreciation of dying declaration:
"This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in PANIBEN V. STATE OF GUJARAT, [(1992) 2 SCC 474]: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See MUNNU RAJA V. STATE OF M.P. [(1976) 3 SCC 104])
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See STATE OF U.P. V. RAM SAGAR YADAV, [(1985) 1 SCC 552] and RAMAWATI DEVI V. STATE OF BIHAR [(1983) 1 SCC 211])
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K.RAMACHANDRA REDDY V. PUBLIC PROSECUTOR, [(1976) 3 SCC 618)
(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See RASHEED BEG V. STATE OF M.P., [(1974) 4 SCC 264])
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See KAKE SINGH V. STATE OF M.P., 1981 SCC (Cri) 645)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See RAM MANORATH V. STATE OF U.P., [(1981) 2 SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See STATE OF MAHARASHTRA V. KRISHNAMURTI LAXMIPATI, 1981 SCC (Cri) 364)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See SURAJDEO OJHA V. STATE OF BIHAR, 1979 SCC (Cri) 519)
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.
But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See NANHAU RAM V. STATE OF M.P. [1988 SCC (Cri) 342)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See STATE OF U.P. V. MADAN MOHAN [(1989) 3 SCC 390])
(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. (See MOHANLAL GANGARAM GEHANI V. STATE OF MAHARASHTRA, [(1982) 1 SCC 700])
25. In PURAN CHAND V. STATE OF HARYANA [2010 (3) SCC (Cri) 197], the Hon'ble Apex Court once again reiterated the above mentioned principles.
26. In PANNEERSELVAM Vs. STATE OF T.N. [2010 (4) SCC (Cri) 496], the Hon'ble Apex Court held as under:
"8. ... It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
27. Recently, in SURINDER KUMAR Vs. STATE OF HARYANA [2012 (1) SCC 230], the Hon'ble Apex Court observed as under:
"Though there is neither a rule of law nor of prudence that dying declaration cannot be acted upon without corroboration but the court must be satisfied that the dying declaration is true and voluntary and in that event, there is no impediment in basing conviction on it, without corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Likewise, where the deceased was unconscious and could never make any declaration the evidence with regard to it is rejected. The dying declaration which suffers from infirmity cannot form the basis of conviction."
28. If, after careful scrutiny, the Court is satisfied that the dying declaration is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. With these principles, let us consider the statements of Sumathi and its acceptability.
29. Thus, the Court has to consider each dying declaration, scrutinise it and consider in the light of the evidence adduced whether the dying declaration is true, voluntary, genuine and not born out of tutoring or prompting. It may be the first one or the next one and so on.
30. Thus, merely on account of the first one being inconsistent to the next one, the first one cannot be automatically accepted, discarding the next one. It all depends on the facts and circumstances of each case.
31. Now, let us proceed to see which one of the statement of Sumathi, we shall accept in this case.
32. Lourdhusamy, brother of accused, complained against his brother's father-in-law, who is now P.W.2 and his son that they have assaulted him and his brother on 13.9.2008. Based on that P.W.2 and his son were prosecuted in S.C.No.152 of 2006 before the learned Additional Sessions Judge (Fast Track Court No.II), Tuticorin and on 18.2.2006, they were convicted and fined under Sections 324 and 506 (ii) IPC.
33. The said conviction and sentence was in the year 2006. Thereafter, the accused and P.W.2's daughter lived as husband and wife, in a separate house, situate in Narayanan Chetti Street in Tuticorin and they were also blessed with a child. P.W.2 lived in the next street. He and his wife/P.W.1 used to frequent their daughter's house. It is significant to note that on the fateful day, namely on 12.9.2008, at about 2 p.m., P.W.1 came to the house of the accused, took her grand-son Roobinston with her and then the accused was also in the house. He did not protest that. So, it shows that in a routine manner, the grand mother came and took her grandson with her to her house. That shows the cordiality having persisted between both the families.
34. Of course, P.Ws.1 and 2 who are in-laws might have talked less to her son-in-law, perhaps, they wanted to keep themselves at a distance from their son-in-law. That does not mean bad blood was brewing between them and their son-in-law because of an incident that had taken place long ago.
35. On 12.9.2008, at about 10 p.m., Sumathi gave Ex.P.6 statement to P.W.9 Head Constable Kamaraj that she sustained burn injury in the accidental fire in her house. P.Ws.1 and 2 were also present. In fact, P.W.1 also attested in Ex.P.6. If really, P.Ws.1 and 2 were nurturing in their mind, the past event that had taken place between both the families in 2006, on 12.09.2008 itself she had every opportunity to have tutored their daughter to implicate their son-in- law and P.Ws.1 and 2 would not have allowed their daughter to make Ex.P.6 statement and P.W.1 also would not have attested in it. This is also indicative of the fact that then P.Ws.1 and 2 were under the impression that their beloved daughter sustained burn injury only in the manner, namely accidental fire as told by their daughter.
36. Accused and Sumathi lived in the upstair portion. It is a very small house consisting of two rooms. The kitchen is adjacent to the second room. In the same upstair portion, on the northern side, P.Ws.3 and 4 Selvam and Antony Pitchai are residing. They have stated in their evidence that on hearing the shriek of Sumathi, they have rushed to her portion and seen the accused there. P.Ws.1 and 2 have also stated that when they came to their daughter's house, they have seen the accused.
37. Thus, on that day, then the accused was available in his house. Further, then, in their house, accused and Sumathi alone were there.
38. Though P.Ws.3 and 4 turned hostile, it does not mean their evidence deserve wholesale rejection. That portion of the evidence of hostile witnesses, which is incriminating in nature or assertion of some factual matrix can be relied on.
39. The positive evidence of P.Ws.3 and 4 is that at the material time, in that house, accused was also present along with his wife Sumathi. But he did not take any efforts to put out the fire. Accused is a physically handicapped. He has 40% disability. He is doing fish-auction in Tuticorin Port. He cannot walk fastly. So, he could have saved or attempted to save her. He did not sustain any burn injury. He also did not say that he had attempted to save his wife. Dr.Selvaraj (P.W.11) who performed autopsy on the dead body, noticed injuries both inside and outside her hands. It suggests that she had tried to save herself. In the normal circumstances, in a situation like this, if an husband was available in the house, he will go to the rescue of his wife. But, in this case, though the accused was available in that small room, he did not do anything to save her, while she was burning and crying.
40. On 12.9.2008, at about 6 p.m., in their house, Sumathi sustained burn injuries. At the Government Medical College Hospital at about 9.45 p.m., she told P.W.9 that while preparing tea in the kitchen, in the accident fire, she sustained burn injury. So also she stated in her Ex.P.6 statement to P.W.9 Head Constable Kamaraj. P.Ws.1 to 4 have stated that then the accused was present in the house. Yet, he did not take any efforts to save his wife. He accompanied her to Rajeswari hospital, Tuticorin. He also went to American Hospital, Tuticorin. Sumathi is having a son then 2 _ years old. In such circumstances, she wished to live/survive for the sake of her son. Her son's life would be before her eyes. The very person who had set fire on her, namely, her husband was near her. In the circumstances, in that precarious situation that helpless lady made to/bound to say that she sustained burn injury in the accidental fire.
41. It is significant to note that when her husband left the hospital, left her alone, she revealed the real occurrence, namely, her husband had set fire on her. In the circumstances, on 15.9.2008, at about 9.45 a.m., when P.W.15 Perumal, S.I visited the hospital and examined her, she had stated that her husband set fire on her and she also stated to him that on 12.09.2008 why she had stated that she sustained burn injury in accidental fire. She had very clearly stated that then she has to say because all along her husband was near her. Further, on 18.9.2008, when P.W.12 Hemanantha Kumar, the Judicial Magistrate, recorded her dying declaration, she had very clearly stated that her husband only set fire on her. She had also stated P.W.12 why her husband had set fire on her.
42. In her dying declaration (Ex.P.13) to P.W.12 she had stated that her husband had abused her in indecent language. After her husband left the hospital, Sumathi told her mother that her husband demeaningly criticised her having loop in her and told her to have child from anybody. Her father (P.W.2) also stated that his daughter told him that her husband so abused her.
43. The post-mortem of her body was done by P.W.11 Dr.selvaraj. In his cross-examination, he had stated that he had seen Septiseemia in the burn injuries. In his final opinion, he had stated that she had died of burn injury and complications thereof.
44. The learned counsel for the accused tried to disassociate the burn injury and the subsequent development.
45. How she got septeseemia? It is because of burn injury. How she got the burn injury? It is because of setting fire on her body. Because, of his setting fire on her body, the effect is her death. So, cause and effect are connected in setting fire on her body. In this connection, it is relevant to note Explanation 2 to Section 299 IPC dealing with culpable homicide. It states that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and successful treatment the death might have been prevented.
46. Therefore, the arguments based on the evidence of the post-mortem doctor is of no avail to him.
47. P.W.9 Dr.Karunakaran stated that he did not smell kerosene on the person of Sumathi. A drop of kerosene is enough to ignite with fire to destroy a whole house. Huge quantity of kerosene is not required to burn a lady. Smell of kerosene depends on the quantity of kerosene splashed on the body. Even then, in the complete fire, the kerosene may vanish into the air. In that event, there may not be possibility of smell of kerosene. In this case, it is not that kerosene was poured on her from a bucket. Further, Sumathi was found with extensive burn injuries. In these circumstances, P.W.11 having not smelled kerosene on her body, is too insignificant a matter and did not shake the prosecution case.
48. When on 18.09.2008 at the hospital, P.W.12 recorded the dying declaration, Dr.Denzil was also present. Before recording the dying declaration, he had certified that she was conscious and was having fit mental condition to give dying declaration, further, to test her mental ability and mental fitness to give dying declaration P.W.12 engaged her in a conversation with him and after having fully satisfied, he had recorded her dying declaration. After completion of his recording of dying declaration also, Dr.Denzil certified in Ex.P.13 that she was fully conscious through out the recording of dying declaration.
49. It is a fact that Dr.Denzil was not examined in the trial Court. In this connection, the learned counsel for the accused contended that in the absence of examination of the said doctor in court and after recording of the said dying declaration, the doctor having not stated that she was in fit mental condition through out Ex.P.13 dying declaration cannot be relied on.
50. In PAPARAMBAKA ROSAMMA Vs. STATE OF A.P. [1999 (7) SCC 695], on 13.09.1999, a three Judges Bench (Hon'ble Mr.Justice S.P. KURDUKAR, Hon'ble Mr. Justice K.T. THOMAS AND Hon'ble Mr.Justice N. SANTOSH HEGDE, JJ) of the Hon'ble Apex Court held as under:
"In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration."
51. In KOLI CHUNILAL SAVJI Vs. STATE OF GUJARAT [1999 (9) SCC 562], on 29.09.1999, another three Judges Bench (Hon'ble Mr. Justice G.B. PATTANAIK, Hon'ble Mr. Justice M. SRINIVASAN AND Hon'ble Mr. Justice N. SANTOSH HEGDE, JJ) of the Hon'ble Apex Court held as under:
"It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In RAVI CHANDER V. STATE OF PUNJAB [(1998) 9 SCC 303] this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted."
52. It is pertinent to note that PAPARAMBAKA ROSAMMA (supra) was not brought to the notice of the Hon'ble Judges in KOLI CHUNILAL SAVJI (supra).
53. The conflicting decisions in PAPARAMBAKA ROSAMMA (supra) and in KOLI CHUNILAL SAVJI (supra) were brought to the notice of the Hon'ble Apex Court in LAXMAN Vs. STATE OF MAHARASHTRA [JT 2002(6) SC 313]. In the circumstances, a Constitution Bench consisting of 5 Hon'ble Judges (Hon'ble Mr. Justice G.B. PATTANAIK, Hon'ble Mr. Justice M.B. SHAH, Hon'ble Mr. Justice DORAISWAMY RAJU, Hon'ble Mr. Justice S.N. VARIAVA & Hon'ble Mr. Justice D.M. DHARMADHIKARI, JJ) was constituted. The Constitution Bench held as under:
"What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. ...
In the latter decision of this Court in KOLI CHUNILLAL SAVJI V. STATE OF GUJARAT [(1999) 9 SCC 562] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in RAVI CHANDER V. STATE OF PUNJAB [(1998 (9) SCC 303] wherein it had been observed that for not examining the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise."
After holding so, the Constitution Bench held that the judgment in PAPARAMBAKA ROSAMMA V. STATE OF A.P. [(1999) 7 SCC 695] must be held to be not correctly decided and their Lordships affirmed the law laid down by the Hon'ble Apex Court in KOLI CHUNILLAL SAVJI V. STATE OF GUJARAT [(1999) 9 SCC 562].
54. In SHANMUGAM Vs. STATE OF TAMIL NADU [AIR 2003 SC 209], it was argued that in the absence of examination of the doctor, who certified the mental condition of the patient, the dying declaration is to be discarded. The Hon'ble Apex Court referring to LAXMAN (Supra) answered as under:
"The mere fact that the doctor, in whose presence Ext. P-16 was recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration."
55. In KAMALAVVA Vs. STATE OF KARNATAKA [2010 1 SCC (Cri) 1140], the Hon'ble Apex Court held as under:
"21. The question as to admissibility of a dying declaration came up before this Court in several cases. LAXMAN V. STATE OF MAHARASHTRA [JT 2002 (6) 313] wherein also a question regarding the admissibility of the dying declaration was raised, the Constitution Bench held that the Court must decide that the declarant was in a fit state of mind to make the declaration, but where the eyewitnesses' evidence including the evidence of a Magistrate who had recorded the dying declaration to that effect was available, mere absence of doctor's certification as to the fitness of the declarant's state of mind, would not ipso facto render the dying declaration unacceptable. It was further held that the evidentiary value of such dying declaration would depend upon the facts and circumstances of each particular case."
56. In PAPARAMBAKA ROSAMMA stated supra, after completion of the recording of the dying declaration, the Doctor has stated that the patient was conscious while recording the statement. He did not state that the patient was in a fit state of mental condition through out. In such circumstances, the Apex Court held that it is not in compliance of the requirement of law. However, after the decision of the Apex Court in LAKSHMAN and the subsequent Ruling on the above lines shows that in reality, there is no distinction between 'consciousness' and 'fit mental condition' of the patient to give dying declaration. They have gone to the extent of holding that even the medical certificate is not given or the Medical Officer, who gave the certificate is not examined in the Court, that itself will not make the Court to throw away the dying declaration as it some times will result in miscarriage of justice.
57. So, it is seen that now the law is well settled that even based on a sole dying declaration a conviction can be recorded, if it is voluntary, genuine and truthful. Merely on account of non-examination of the medical officer, who had certified the fit mental condition of the declarant at the time when the patient had made the dying declaration, the dying declaration cannot be rejected.
58. On 12/9/2008, at about 6 p.m., Sumathi, sustained burn injury in her house. She was rushed to two private hospitals, one after the other and then taken to Government Medical College Hospital, Tuticorin. At about 9.30 p.m., P.W.9 Kamaraj, Head Constable received Ex.P.14 intimation from the hospital. At about 10 p.m., he had recorded Ex.P.6 statement at the hospital, returned to the Police Station at about 11 p.m., made entry in the Station General Diary. Then, as we have already seen, the case was treated as an accidental fire. Then the case went in a routine manner. Then, none was serious about the case. It was only on 15.8.2008 morning, when Sumathi told P.W.15 Perumal, Sub-Inspector of Police that her husband had set fire on her, the accidental fire case has been altered to Section 307 IPC, thereafter, the hospital sent intimation (Ex.P.12) to P.W.12 the Judicial Magistrate to record her dying declaration, immediately P.W.12 visited the hospital and recorded her dying declaration (Ex.P.13). On 2.10.2008, in the midnight, she had passed away. Thereafter, the case was altered to a murder case under Section 302 IPC. P.W.10 R.D.O. and P.W.16 D.S.P. were informed of this and P.W.10 held inquest and conducted enquiry. Thus, it is seen that initially, the case proceeded as an accidental fire, subsequently, Sumathi having told the real truth as to her sustaining of burn injury further steps in investigating the case was taken. Merely on account of delay in either lodging the FIR or in despatching the material documents of the case to the Court, a case cannot be thrown out when especially there are clinching and acceptable evidence was produced.
59. In GARLAPATI KRISHNA Vs. STATE OF ANDHRA PRADESH [2012 (1) SCC (Cri) 396] it was held that delay in preferring complaint by itself is not a ground to reject the prosecution case.
60. In BHAJAN SINGH Vs. STATE OF HARYANA [2011 (3) SCC (Cri) 241], the Hon'ble Apex Court held that delay occurred in despatching the F.I.R. to the court by itself is not a circumstance which can throw out prosecution's case in its entirety.
61. In JOHN PANDIAN Vs. STATE [2011 (3) SCC (Cri) 550], the Hon'ble Apex Court held that the delay in recording of statement under section 161 Cr.P.C. itself not make the prosecution case false, it all depends upon quality of evidence. Further, by mere delay in submitting the material documents and other documents of the prosecution to the court, the court cannot hold that the prosecution case has to be thrown out, it all depends upon how far it affects the credibility of the witnesses. Further, when the prosecution witnesses is clear and their evidence is cogent, these delay will not speak on the prosecution case.
62. There is nothing to accept that P.Ws.1 and 2 have tutored or prompted their daughter to give false declaration implicating her husband. P.W.12 the Judicial Officer also stated that except himself and Dr.Denzil, he did not allow others while the dying declaration was recorded.
63. As per the law laid down by the Apex Court, based on sole dying declaration, a conviction can be recorded, if it is true and voluntary. In this case, the contents of judicial dying declaration stand corroborated on its material particulars by the overwhelming and unimpeachable evidence let in with regard to the various aspects referred to and pertaining to the dying declaration. Ex.P.13 dying declaration is not the result of any tutoring or prompting from her dear and near ones. At that time, when the dying declaration was given, she was conscious and was in a fit mental condition. Her Ex.P.13 dying declaration is genuine, voluntary and is not result of any pressure exerted upon her. In the circumstances, based on her dying declaration, a conviction can be safely recorded.
64. In the circumstances, instead of Ex.P.6 statement, we can safely accept and act upon Ex.P.13 dying declaration given by the deceased to P.W.12 Judicial Magistrate.
65. In view of the foregoings, we hold that the prosecution has established its case beyond all reasonable doubts. In the circumstances, we concur with the findings of the trial Court. Thus, the accused has been rightly convicted under Section 302 I.P.C. and was sentenced accordingly.
66. In the result, this Criminal Appeal is dismissed, confirming the conviction recorded and the sentence imposed upon the appellant in S.C.No.65 of 2011, by the learned Additional Sessions Judge, (Fast Track Court No.I), Tuticorin.
mvs/sj To (1) The Additional Sessions Judge, (Fast Track Court No.I), Tuticorin.
(2) Through the Principal Sessions Judge, Tuticorin.
(3) The District Collector, Tuticorin District, Tuticorin.
(4) The Superintendent of Police, Tuticorin District, Tuticorin.
(5) The Superintendent of Prisons, Central Prison, Tirunelveli.
(6) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
(7) The Inspector of Police, North Police Station Tuticorin.